Is there any persuasive way to reconcile these two positions? Maybe, but I am a bit skeptical. In both cases, federal law gives businesses an option (to use or not to use E-verify, to install or not to install a shoulder-and-lap seatbelt). The central issue of implied preemption is simply whether this federally protected choice liberates businesses from only federal interference or whether the federal law also liberates business from state interference. So far as I can tell from the briefs and lower court opinions, nothing in the language of the relevant laws or precedents forecloses either reading (Geier notwithstanding). Instead, the scope of business discretion under these two laws depends on one's general sense of whether ambiguities in federal laws ought to be read to preserve business's freedom from regulation or states' freedom for collective self-government.

If one tends to be (as I am) a federalism fan, then one will tend to read Geier narrowly and endorse the Obama Administration's position in Williamson. But the same general inclination leads me to reject the Obama Administration's position in U.S. Chamber of Commerce. I do so reluctantly, against my policy priors that Arizona's law is mean-spirited and counter-productive. But, as much as I'd like to do so, I just cannot see a coherent doctrine of implied preemption that would read businesses' option as preempting state supplementary regulation under IRCA but as allowing tort liability under FMVSS 208. After the jump, I'll explore some of the options and offer my reasons for why they seem unsatisfying.

1. "Immigration is Different": The easiest way to distinguish the cases is to invoke the old Hines v. Davidowitz idea that immigration law is a field in which the federal interest is especially strong. The difficulty, of course, is that the "field" of "immigration" is hardly well-demarcated: If De Canas v. Bicas is any guide, Arizona has not entered such a "field," because Arizona has adopted federal standards for defining legal presence in the United States. If one took the broad view that state laws making any reference to the field of immigration or the immigration status of persons are automatically preempted, then one would have to argue that states' and cities' "sanctuary laws" barring police from assisting in the enforcement of federal immigration laws are preempted. As I reject this latter position, I do not see how I can argue in favor of preempting Arizona's "anti-sanctuary" law.

2. "IRCA's preemption clause is stronger than the Safety Act's preemption clause": Not really. IRCA's and the Safety Act's preemption clauses both expressly preempt, and save from preemption, a vaguely defined subject area. IRCA provides that "[t]he provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens." 8 U.S.C. § 1324a(h)(2). . The question of express preemption, therefore, turns on whether Arizona's law is a "licensing ...law[]." Arizona's law suspends businesses' licenses to do business in the state of Arizona if those businesses do not follow the employee verification procedures contained in the state statute. How is this not a "licensing law"? Admittedly, the category "licensing law" is ambiguous, but, if one favors a presumption in favor of state power where statutes are ambiguous, then it is hard to see why Arizona's law does not fall within the IRCA's very ambiguous savings clause.

Of course, one could simply embrace the position that preemption is justified when states adopt positions that one does not like (or that one's party constituency opposes). This might be the best explanation for the U.S. Solicitor General's divergent positions on preemption in Williamson and U.S. Chamber of Commerce. This opportunistic theory of preemption, however, is unavailable to those of us who think that robust subnational democracy is ceteris paribus desirable even when we disagree with what those robust subnational democrats have wrought.

So I would be grateful for any suggestions from anyone about why these two cases are not paribus: Is there any persuasive theory of preemption that would throw out the bathwater of Arizona's nasty law but save the baby of California's tort regime?

Comments

One specific reason why the federal government holds all the cards and Arizona none is left out. The United States has specifically raised the issue of international relations. There is strong Constitutional precedent that the federal government has absolute power to regulate international relations, and the federal government has stated that Arizona's law impedes their ability to do so.

The federal government might waive their right to manage international relations in specific situations, or it might sanction Arizona's actions, but the road to the law's validity lies through the federal government.

The question is which provisions of the Arizona bill impede on the federal governments right to manage international relations. Some should clearly fall under the auspices of the federal government's authority -- such as making it a state misdemeanor to be in the U.S. illegally -- but others may fall outside of this authority.

And no, this authority is not the same as immigration authority. They dovetail at various points, but they are predicated on separate core principals. Immigration power is based on the right of the federal sovereign to secure the national borders. Separate to this is the power of the federal government to deal with other national sovereigns, and the lack of power for a state to do so.

The reason this distinction is important is that the federal government has the right and power to choose when and how to prosecute immigration violations. Arizona's law, in some circumstances, interferes with this power and therefore trespasses on this federal power.

This isn't even really pre-emption in a sense. States have no power at all to deal with foreign nations. Yes, there are some ways around this in the economic reason, but this is a very clear part of the Constitution and was more or less settled with that whole nasty Civil War we had. In another sense, it is kind of pre-emption, albeit no the classic kind, in that the federal government has not sought to preclude a state from acting this way up until now.

Nevertheless, pre-emption has always been there for areas where states and the federal government both had (or might have had) the legal right or power to act, but the federal government's power is found to trump that of the state's. In this case, it is arguable that Arizona's law is void on its face because Arizona had no right at all to act in this way, period, as it is a specifically reserved federal power. (See U.S. Const. art. 1 §§ 8, 10.)

So, the answer is that this case differs from those you present and may not be a pre-emption case at all. Moreover, the Solicitor General's office wrote a brilliant complaint that allows them to fall on these theories if necessary.